Senate Confirms Two to NLRB, but Supreme Court Decision Delays Cases

Akito Yoshikane

For several years, Wilma B. Liebman and Peter C. Schaumber were the only members of the National Labor Relations Board. Last week, the U.S. Supreme Court ruled that many decisions issued during that period will have to reworked.

Two steps forward, one huge step back, is what could define the problems at the National Labor Relations board.

The Senate finally confirmed two nominees to the National Labor Relations Board, restoring the agency to five full members following a political deadlock that has hampered the agency from settling labor disputes and certifying union elections. But a Supreme Court ruling last week on past NLRB decisions — made when the NLRB had just two members — could further roll back any momentum.

Brian Hayes and Mark Pearce were part of the 60 nominees confirmed to fill federal vacancies on Tuesday. The approval puts the NLRB back to its original capacity for the first time since December 2007. The NLRB had operated with only two members for 27 months until this spring, as Republicans blocked President Obama’s nominees for favoring unions while Democrats blocked former President George W. Bush’s selections for catering to businesses.

The five member board now has three Democrats and two Republicans.

Hayes, the Republican policy director for the Senate committee on Health, Education, Labor and Pensions, joins Peter Schaumber in the conservative wing. Pearce, a Democrat, joins Craig Becker and Chairwoman Wilma Liebman. Pearce, a union lawyer, has actually been on the NLRB board since April, when President Obama appointed him and Craig Becker temporarily through recess appointments.

But even with the 3-2 Democratic majority, the board could have new members again in the near future. Becker, who has been fiercely opposed by Republicans for having close ties with unions, was not among those confirmed Tuesday. Becker will serve only until the end of 2011, less than a full term. Meanwhile, Schaumber, a Bush appointee, will see his second term end in August.

Obama, who has accused the Republicans of obstructionism, will have to nominate another board member to go through the arduous confirmation process. With mid-term elections looming, a change in political tides will make it even more difficult for unions who are hoping to maintain a labor-friendly NLRB with a Democratic majority.

The board already had a sizable backlog of cases to review even before yesterday’s confirmation, but the mountain of cases grew even bigger after the Supreme Court ruled last week that the more than 500 NLRB decisions made by the previous two-member board will need to re-opened.

In a 5-4 decision against the NLRB, the normally liberal Justice John Paul Stevens joined the Conservative members of the court who said a quorum of at least three members was necessary. The two-member board stemmed from the political deadlock, and because of the inability to fill seat vacancies in the NLRB, board members delegated authority to Democrat Liebman and Republican Schaumber to continue hearing hundreds of cases.

The two offered rulings on cases in which they agreed, deferred about 60 cases in which they disagreed, and another 60 because they would set legal precedent.

Liebman said in a statement that the decision to continue short-handed was legally correct” and that it was the public interest to keep the NLRB functioning. Labor and advocacy organizations like American Rights at Work see this as another tactic to stifle unions. AFL-CIO’s general counsel, Lynn Rhinehart, called the Supreme Court case extremely disappointing.”

Workers in these cases now face further delay as the NLRB is forced to sort out and deal with the impact of the Court’s decision,” she said.

Unions were hoping they could use the Democratic majority to roll back the pro-business decisions handed down by the NLRB during President Bush’s time in office. Among the cases were rulings that determined graduate student teachers could not join unions because they were not employees. In another decision, nurse supervisors were determined not to be rank-and-file workers. As a result, they were prohibited from joining a union.

But these, like many others, will have to wait. The court decision effectively puts any recent cases on the backburner as the board revisits previous disputes. As routine cases and others that will determine national labor policy remain stalled, so will workers’ rights.

Akito Yoshikane is a freelance writer based in Chicago.
Brandon Johnson
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